Appeal No. 2000-1622
Application No. 08/752,445
As the examiner notes, the stubs are not recited as part of
the claimed combination, and yet the width of the claimed
structure, the water closet carrier, is defined in relation to
the distance between the stubs.
We are not unsympathetic to the examiner’s position,
supra. Nevertheless, we consider that the present situation
is governed by the Court’s decision in Orthokinetics, Inc. v.
Safety Travel Chairs, Inc., 806 F.2d 1565, 1572, 1 USPQ2d
1081, 1085-86 (Fed. Cir. 1986). In that case, claim 1 of the
’867 patent read:
1. In a wheel chair having a seat portion, a
front leg portion, and a rear wheel assembly,
the improvement wherein said front leg portion
is so dimensioned as to be insertable through
the space between the doorframe of an automobile
and one of the seats thereof . . .
(806 F.2d at 1568, 1 USPQ2d at 1082; emphasis added). The
Court hold that the emphasized language was not indefinite
under
35 U.S.C. § 112, second paragraph, noting that witnesses
testified that measuring the space between a selected
automobile’s doorframe and its seat and then dimensioning the
front legs of the travel chair to fit that particular space in
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